OVERVIEW

This case pertains to a mother’s ability to change her children’s legal names.

BACKGROUND

The Applicant mother and the Respondent father have 2 children, ages 4 and 2. When the children were born, the parties jointly decided their surname “Dikianidis” (the surname of the father). The parties were never married, but they cohabited from February 2017 to August 2021.

A court proceeding was commenced by the Applicant in September 2021, who seeks sole decision-making for the children, among other things. The Respondent seeks joint decision-making.

In January 2023, the Applicant was granted temporary sole decision-making responsibility for the 2 children. Subsequently, the Applicant filed two applications under the Change of Name Act to change the surnames of the children to “Tansley” (the surname of the Applicant). After the Respondent objected to this, a judge temporarily stayed the name change application.

The Respondent filed a Motion seeking to continue the temporary order to stay the children’s name change application pending final determination of decision-making responsibility at trial. The Applicant mother filed her own Motion seeking an order that dismisses the Respondent’s Motion.

ISSUE

Should the mother be permitted to change the children’s names under the Change of Name Act based on a temporary order granting her decision-making responsibility?

ANALYSIS

The Change of Name Act

Sections 5(1) and (5 (1.1) of the Change in Name Act (“the Act”) state that a person may apply to change a child’s name if the person applying is someone “… with lawful custody of…” the child. Further, section 5(2) states that the application for a change of name “… requires the written consent of, (a) any other person with lawful custody of the child…”

The term “lawful custody” is not defined in the statute. The Applicant argues that “lawful custody” is synonymous with “decision-making responsibility,” and that as the parent with temporary sole decision-making responsibility, she has the legal right to change the children’s nameswithout written consent from the Respondent.

The Respondent disagrees and argues that the two terms do not mean the same thing. He further argues that even if the terms are synonymous, “lawful custody” and “decision-making” refer to a final determination of the issue via court order or a separation agreement, not a temporary determination.

The Court agreed with the Respondent that “lawful custody” and decision-making responsibility” are not synonymous.

Best Interests of the Child Test

Since “lawful custody” and “decision-making responsibility” are not synonymous, the Court determined that if there is a temporary order regarding decision-making responsibility pending a final determination by a court, then any issues related to the child’s name can be dealt with at trial. In appropriate circumstances, a party can file a Motion to change a child’s name, but the legal test for this is whether a change of name would be in the child’s best interests.

The Court went on to say that any proposed name change should be carefully considered to ensure that it would be beneficial to the child throughout the child’s lifetime. Further, the child’s surname should not automatically change to conform to the present surname of the custodial parent.

In this case, the Court found that the Applicant has no good explanation for why the children’s names must be changed or why it would be in their best interests. The Court noted there is no evidence that the Applicant has been impeded from travelling with the children or accessing public services for them. Further, there is no indication that children who have a different surname than their primary caregiver are in any way stigmatized. Essentially, the Court found that the Applicant was seeking an order to change the children’s names based on her own feelings.

Ultimately, the Court ruled that changing the children’s names while the parties are actively seeking a final order with respect to final decision-making authority is inappropriate and immature.

CONCLUSION

The Applicant mother’s Application to change the surname of her 2 children is stayed pending the Final Order of the Court.